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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Thursday, April 29, 2010

Anti-war protester defeats qualified immunity in false arrest case

The Court of Appeals has ruled that an anti-war protester may proceed with a false arrest lawsuit against a police officer who claimed the plaintiff went limp when he ordered him to disperse. While courts often dismiss false arrest cases because the police had an objective reason to believe probable cause justified the arrest, this case is allowed to proceed.

The case is Bradley v. Jusino, decided by summary order on April 14. Bradley brings a false arrest claim against police officer Jusino, who arrested Bradley for Obstructing Governmental Administration arising from a street protest. The Court of Appeals (Feinberg, Calabresi and Raggi) lets the case go forward.

Confirming that every case has the potential to be interesting, the trial judge described the case this way:

This action initially appeared to be a relatively routine confrontation between a demonstrator and a police officer towards the end of an unexpectedly massive anti-war demonstration. However, the circumstances were unfamiliar to both Bradley, a 63-year old self-styled farmer from outside Ithaca, and Jusino, a very recent graduate of the Police Academy. Under these circumstances, difficulties in managing and presenting a qualified immunity defense in a false arrest case became manifest. The regrettable procedural tangle and ultimate resolution is described below.

Bradley claimed that Jusino was interfering with legitimate police practices, but Bradley testified that "while he was trapped in a dense crowd of protesters, a line of officers moving into the crowd bumped into him, he fell, he quickly rolled onto his stomach, face-down on the sidewalk, to protect himself as the line passed overhead, he felt someone grab his arm, lift him partway off the sidewalk, the drop him, and he was placed under arrest." As the Court of Appeals sees it, "these facts do not provide a basis, actual or arguable, to think that Bradley intended to disrupt police officers or cause public inconvenience."

Jusino claimed that he thought Bradley intentionally ignored police orders to disperse and that he went limp when Jusino grabbed him. On its face, Jusino is describing an Obstructing Governmental Administration charge, but the jury can reject Jusino's version of events and credit Bradley's version, particularly if the jury thinks the crowd was too dense to permit ready dispersal and Bradley did not have time to get up at Jusino's command. So that even though police officers can assert qualified immunity if they believe in good faith that probable cause justified the arrest, this immunity cannot attach if the jury is able to credit the plaintiff's testimony and draw the reasonable inference that the arrest lacked probable cause.